Statute of limitations for penalties for late merger control notification.
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Competition & Antitrust Department Report | Statute of limitations for penalties for late merger control notification
Dear Sir or Madam,
In a recent ruling (1), Court No. II of the Federal Civil and Commercial Court of Appeals set the criteria for interpreting the statute of limitations applicable to sanctions for merger control late filing, as established in the Argentine Antitrust Law (No. 27,442).
The ruling establishes that the breach of the obligation to notify a transaction for merger control is a single, continuous infringement that does not cease unless the transaction is notified.
This has important consequences for the application of the statute of limitation, since according to the ruling, its five-year term does not begin until the (late) notification of the transaction has taken place.
From a practical standpoint, this suggests that the applicable penalty per day of delay (calculated in administrative business days) can extend for a period of more than five years, which is the term of the statute of limitations. In fact, the ruling draws support from another recent precedent (2) that, adopting a similar argument, confirmed a penalty for 1,229 administrative business days of delay, equivalent to a term longer than five years.
This interpretation has a significant impact because it rules out the alternative interpretation establishing that because penalties for late filing are counted per day of delay, a fine can never exceed a number of days equivalent to five years.
(1) “Administrative Processing Center S.A. y otro c/Estado Nacional (Ministerio de Producción) s/apel. Resol. Comisión Nac. Defensa de la Compet.” (causa N°4064/2019). Cámara Nacional de Apelaciones en lo Civil y Comercial federal – Sala II – 23.09.2019.
(2) “Heket S.A. y otro c/Estado Nacional – Ministerio de Producción s/apel. Resol. Comisión Nac. Defensa de la Compet.” (Causa N°2225/2018) Cámara Nacional de Apelaciones en lo Civil y Comercial Federal – Sala II – 22.11.2018.
Should you require any further information on this matter, please do not hesitate to contact us.
Sincerely.
Agustín Waisman
Mercedes Pando
Tomás López Bisso